Same-sex marriages in Hawaii

1997: Legislative activity

At the opening of the 1997 session on 1997-JAN-17, Speaker of the House Joe Souki said
that:

"The House will propose a constitutional amendment to permit the Legislature,
rather than the courts to resolve this [marriage] issue...At the same time, certain
benefits and rights will be made available to couples who are legally prohibited from
marrying one another."

On 1996-JAN-21, the Judiciary Committee voted 12-1 in favor of passing bill HB
117 to the house. It is titled "A Bill for an act Proposing a Constitutional
Amendment Relating to Marriage." It would amend the constitution of Hawaii to
define marriage as involving one man and one woman. During hearings, Jon Van Dyke, a law
professor from the University of Hawaii testified that a constitutional amendment that
denied a specific benefit to a specific group of adults might be itself unconstitutional.

This proposed constitutional amendment is ironic. A main purpose of any constitution in a
democracy is to protect the rights of minorities from the oppression of the majority. This
amendment would oppress a minority who want nothing more than to have the same rights as
everyone else.

A lawyer testified to the committee that they must "legislate and
therefore impose morality on the public." This was argued on the basis that "gays
and lesbians are immoral" and that the senators should only enact laws based on
"morality." In 1997-MAR this same lawyer, representing the owners of a number of
"hostess" bars, told senators that they cannot "legislate their morality
on the public." Some hostess bars are sites for heterosexual prostitution and
drug dealing.

The Committee rejected the argument of the Hawaii Supreme Court that the existing
marriage laws sexually discriminated against gays and lesbians. They commented that the "judicial
branch of government has continued to assert an interpretation of our State Constitution
which is both unprecedented in judicial history and clearly contradictory to the intent of
the framers of our Constitution." The committee vote was 9 in favor, 3 in favor
with reservation and 1 opposed.

The Committee also approved bill HB118 "A Bill for an Act Relating to Unmarried
Couples," which would allow unmarried adults to have their relationship
recognized. Their report stated:

"Your Committee finds that when illness, death or financial reverses strike
only one party to such a relationship these individuals lack the protection that
long-established legal doctrines afford married couples under the same circumstances."

"Your Committee finds that it is appropriate to address the concerns of those couples by
creating a legal structure for reciprocal beneficiaries."

"Because this structure is not available to those couples who can legally marry, it does
not threaten to undermine marriage between couples of the opposite sex."

"Your Committee believes that this measure, in providing for the right to hospital
visitation and the right to make health care decisions for the other party, the right to
hold property as tenants by the entireties, inheritance rights, and the right to sue for
wrongful death, will be of substantial benefit to many people in our community."

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At the committee hearings:

University of Hawai`i law Professor has said a state constitutional amendment denying a
benefit for a specific group of people could be overturned by the U.S. Supreme Court.

Janice Judd of the group "Stop Promoting Homosexuality" said that "Some
countries cut off their [Gay] heads. We don't do that. What more do they want?"

The Committee vote was 4 in favor, 9 in favor with reservation and 0 opposed.

The House proposed a constitution amendment that would read:

"Statutes, regulations, laws, rules, orders, decrees and legal doctrines
that define or regulate marriage, the parties to marriage, or the benefits of
marriage shall not be deemed in violation of this section of any other section
of this Constitution by virtue of a limitation of the marriage relationship to
the union of only one man and one woman."

The House has proposed a companion "reciprocal beneficiaries" bill which
would guarantee gay and lesbian couples four specific rights: hospital visitation, joint
property ownership, inheritance rights and the right to sue for wrongful death.

The Senate bill proposes a constitution amendment that would read:

"The state shall have the power to regulate and define the institution of
marriage, including the reservation of marriage to couples of the opposite sex; provided
that this reservation shall be effective only if the laws of the state ensure that the
application of this reservation does not deprive any person of civil rights on the basis
of sex."

This would give about 200 state rights and benefits to gay and lesbian couples. They
would include state worker's health and death benefits accruing to a "life partner,"
the ability to file joint state tax returns, workers' compensation benefits and criminal
victims' rights, family leave, and other rights.

A Joint Conference Committee of the House and Senate met on 1997-MAR-3 to
promote their own versions of the bills.

On about April Fools' Day, the House offered a new constitutional amendment:

"The Legislature shall have the power to reserve the legal recognition of the
marriage relationship, and its attendant rights, benefits and burdens to couples of the
opposite sex."

They would also add one more protection for gay & lesbian couples to their
companion bill: they would require health insurers to offer family coverage for "reciprocal
beneficiaries." Reciprocal beneficiaries are couples--including gay and lesbian
couples--who are not permitted to marry.

On APR-9 the House's latest proposed constitutional amendment was:

"The Legislature shall have the power to reserve marriage to opposite sex
couples."

But the House refused to discuss a compromise on the "Reciprocal
Beneficiaries" bill.

Very early in the morning of APR-12, the talks collapsed. The self-imposed deadline of
APR-11 had passed.

During the evening of March 16, they met again and allegedly reached a compromise. They
agreed:

to place a Constitutional Amendment on the 1998-NOV ballot:

"The Legislature shall have the power to reserve marriage to opposite-sex
couples."

to vote on a second bill to give reciprocal beneficiaries a few of the privileges that
are currently restricted to married couples:

Joint medical insurance coverage, for state employees only, and only guaranteed for a 2
year trial period

They total at least 50 out of the hundreds of state privileges granted to opposite sex
married couples. The Senate passed bill HB-118
by a vote of 22 to 3 on APR-21 which authorized the privileges; the House passed it on
APR-29. This "Reciprocal beneficiary Law" took effect on 1997-JUL-1. As
of 1997-AUG-13, 172 Hawaiian couples had registered under the act.

The House and Senate also passed bill HB-117
proposing the amendment to the constitution.

Groups that oppose equal access to marriage for all often quote polls that show that
70% of the people are opposed to same-gender marriage. What is rarely discussed is the
only poll that asked whether the Constitution of Hawaii should be changed to prevent
same-gender couples from marrying. The Honolulu Star-Bulletin Spring
conducted a poll in early 1996 which showed that 51% of the public are in favor
of the amendment. Since the margin of error is plus or minus 5%, it appeared to
be an even split.